Sunday, January 6, 2013

What Counts as Torture?

A few months ago a Massachusetts judge ordered the state’s
taxpayers to pay for the sex change operation of an inmate, which generally cost between $30,000 and $80,000. You can read the
full story here. The inmate suffers from gender identity disorder (‘he’ was
born male and was male at the time of ‘his’ crime, but has now changed ‘his’
name to Michelle and refers to ‘himself’ as a woman. The link above uses female
pronouns to describe the inmate based on the gender ‘he’ self identifies with,
but I found that confusing because ‘he’ was male when ‘he’ committed the crime,
and ‘he’ has not yet had the surgery. For the purposes of continuity, simplicity,
and minimizing confusion, I will refer to ‘him’ with male pronouns throughout
this entry). He is currently serving a life sentence for murder; apparently, his
wife came home early one night and caught him trying on her clothes, and in
what he claims was a panic he killed her. Since admission to prison, he has
twice tried to castrate or kill himself, and was receiving psychiatric
care/hormonal supplements (also at taxpayer expense). The judge ruled that
because his psychological condition was so severe, imprisoning him without
adequate medical treatment for his ailment constituted cruel and unusual
punishment, thus violating the eighth amendment.

My initial reaction to this story was to roll my eyes, and
I’m sure I wasn’t alone. Most people (myself included) have never met somebody
with gender identity disorder, making us naturally suspicious of whether it
really counts as a “sickness” that taxpayers should be on the hook for. Honestly,
I’m suspicious about psychiatric illnesses in general, which are often
obscure, subjective, constantly changing, ever-expanding, culturally biased,
unreliable and difficult to distinguish. For example, some of them seem to apply
only to Japanese people who visit Paris. Others have only ever been
confirmed among
people who had a history of prior mental illness, suggesting they may just
be offshoots or symptoms of some deeper mental problem. Homosexuality
used to be considered a psychiatric disorder, and some still contend that
it is. Gender identity disorder itself is often not permanent; psychiatrists
admit that the vast majority of children with its symptoms eventually “outgrow”
it. This cynicism is compounded by the deep financial ties many psychiatrists have
to pharmaceutical companies; as I’ve noted on this blog in the past, there’s a
lot of money to be made by telling healthy people they’re sick. Perhaps from a
medical perspective it makes sense to keep track of every possible offshoot of
a disorder and distinguish their symptoms, but from a legal perspective it’s
tempting to just say “these people went crazy.” As Obamacare demonstrated, taxpayers
are being placed on the hook for an increasingly broad definition of “healthcare”
(do glasses count? Condoms/birth control? Abortion? Nutritional supplements?
Healthy foods? Pregnancy tests? And now I’m legally required to pay for
insurance coverage on all of this, whether I need it or not?) Because we
libertarians are even more resistant to taxpayer extortion than most people,
it’s no surprise that at first this seemed like another ridiculous example.

But after some thought, I realized this issue brought up
some much deeper, more interesting questions about what counts as “cruel and
unusual punishment” under the eighth amendment. That phrase is so open,
ambiguous and subjective that it’s difficult to know exactly what the framers
meant by it. Considering how much social standards have evolved since then, I
suspect the framers would not have found this particular case to be cruel and
unusual punishment. But the fact that those standards have indeed evolved makes
originalism even harder to justify without explicit proof of that intent. So
while I still don’t agree with the judge’s decision, I don’t know that I can
really rebut it, because I don’t think the judge was objectively wrong. Besides,
even if I’m right about its constitutionality, just because withholding this
surgery is constitutional doesn’t make it a wise or humane policy.

There are two potential reasons I could see justifying the
use of taxpayer money to pay for this surgery: effectiveness of punishment, and
mercy. Is providing this treatment necessary in order to accomplish the
objectives of the criminal justice system? If not, is detaining the man in such
a distressed state tolerable for a sympathetic society?

The answer to the first question depends on what you feel
the most important objectives of the criminal justice system are. On the one
hand, prison is designed to create some level of anxiety, discomfort, and
psychological distress. It’s not supposed to be a fun place. On the other hand,
how much stress and suffering is necessary or tolerable depends on the goal the
incarceration is trying to accomplish. If the goal is merely keeping the
individual off the street to prevent them from harming others, the conditions
don’t much matter so long as the facility is secure. If the goal is deterrence,
then adverse conditions serve an important purpose. If the goal is rehabilitation,
more favorable conditions conducive to introspection and self-improvement might
be preferable. If the goal is retribution, the level of suffering should depend
on the crime committed. Ideally, the justice system should aim for all four of
these goals simultaneously, in different amounts depending on the individual
case.

As it relates to this case, neither denying nor providing
the treatment seems to be critical to the end objective. Protecting the
populace from a murderer is of the utmost importance (as opposed to, say,
protecting them from someone who owes back taxes), but accomplishing that
doesn’t require keeping the murderer in a psychologically uncomfortable
situation. Deterrence is always up for debate, but it might not be applicable
in this case: although we certainly want to deter murder in general, the fact
that this man appeared to have gone crazy suggests that he and others like him
could not have been deterred. Rehabilitation may not be necessary because the
individual is on a life sentence (although in the event he gets out early, it
would seem this operation is a necessary step to leading any type of normal
life). And retribution strikes me as an insufficient justification for torture.
Perhaps if his victim was my sister or mother I might feel differently, but vengeance
doesn’t seem like a good reason to keep someone in a suicidal state. The answer
to the first question seems inconclusive. But since there’s no pragmatic advantage
either way, there’s no pragmatic justification for making taxpayers foot the
bill.

The other way this might be justified is mercy. There is
broad consensus that torture is wrong, and cannot be justified even if it’s
cheaper than the alternative. So, does this count as torture?

To some extent, there is a distinction between deprivation
and infliction. When it comes to the 8th amendment, I believe the
framers were primarily concerned with the latter. Actively inflicting pain on
someone with a weapon or tool or device of some sort seems different to me, and
more cruel, than the failure to give them something which might relieve
existing distress. Another distinction is that infliction requires the forcible expropriation of additional resources from
the taxpayers, whereas deprivation prevents
it. It is a very different thing to make law abiding citizens pay for a torture
device than it is to not make them not
pay for healthcare, especially such broadly defined healthcare as a sex change
operation.

At the same time, it is clear that deprivation can sometimes
count as cruel and unusual punishment. Withholding a basic level of subsistence
like food would cause starvation, which certainly seems like torture. Usually,
we distinguish between necessary and superfluous provisions by distinguishing
between “wants” (like caviar or luxury linens) and “needs” (like food, water, shelter,
and basic healthcare). But these are not concrete terms. Incarcerating somebody
with such scant food or water that they begin to starve is probably cruel.
Giving them meager food and water, sufficient for bodily function but not
enough to really fill them up, probably isn’t. Withholding expensive healthcare
(like a brain surgery) for illnesses with a terrible prognosis, or unreliable healthcare
(like an alternative, herbal remedy for cancer) seems borderline. Withholding frivolous,
non-survival-related healthcare (like Listerine or condoms) is even more
borderline.

Drawing this line is difficult, and it’s important to
consider the impact of where we draw it on state budgets (and taxpayer wallets)
across the country. If the line is drawn to include sex change operations and
psychiatric disorders, what precedent would this set? Is that really a “need”
that you cannot live without? If all prisoners are entitled to as much
healthcare as they want, it leaves the door open to giving them just about
anything. Do we have to pay for their vitamins to ensure they get enough
calcium and don’t develop osteoporosis? Must we provide dental floss and foot
powder and rash ointment and chapstick and Vaseline and Tylenol? These things
are “healthcare” in that they improve one’s health or alleviate irritating health
symptoms, but they’re still inaccessible luxuries to most of the world’s
inhabitants. If an inmate wants to use his own private funds or insurance to
pay for a medical treatment while in prison, that should be permitted. But it’s
not right to force taxpayers to pay extra for those perks, and a sex change
operation seems inessential to that minimum level of sustenance.